Date:
20130820
Docket:
IMM-4193-12
Citation:
2013 FC 883
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
August 20, 2013
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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ZOUHAIR EL MAGHRAOUI
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Applicant
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and
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MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The
applicant is seeking judicial review under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (IRPA), of a decision by a
Citizenship and Immigration Canada (CIC) officer on April 17, 2012,
refusing the applicant’s application for permanent residence on the basis that
there are reasonable grounds to believe that he is inadmissible for misrepresentation
and on security grounds as a member of a terrorist organization under paragraph 34(1)(f)
and subsection 40(1) of the IRPA. The officer also found that it
was not appropriate to grant the applicant an exemption for humanitarian and
compassionate considerations under section 25 of the IRPA given the
seriousness of the inadmissibilities.
Facts
[2]
The
applicant, a Tunisian citizen, arrived in Canada in 1995. His application for
refugee protection was rejected in 1997; the application for leave and judicial
review of that decision was dismissed on January 7, 1998. In February
1998, he married Ms. Amina El Maachi, who is now a Canadian citizen. The couple
have three minor children born in Canada, and Ms. El Maachi also has
two children from a previous marriage.
[3]
In
April 1998, the applicant applied for permanent residence and an exemption
based on humanitarian and compassionate considerations. That application was
sponsored by his wife. On September 20, 1999, a CIC officer concluded that
the marriage was bona fide and approved the application at the first stage,
subject to the examination of inadmissibilities that might apply in this case.
However, Quebec’s Ministère de l’Immigration et des Communautés culturelles rejected
Ms. El Maachi’s application for undertaking submitted on
September 29, 2000, with the result that the applicant’s application for
permanent residence was no longer sponsored.
[4]
The
applicant met with officers from the Canadian Security Intelligence Service
(CSIS) on August 22, 2001, and January 16, 2002, concerning his
application for permanent residence. On or about December 29, 2003, CSIS sent
a first report about the applicant to the Canada Border Services Agency (CBSA).
A new report was subsequently sent on March 3, 2011.
[5]
On
June 19, 2009, the applicant sent a demand letter to CIC, requiring it to
grant him permanent residence forthwith. On March 18, 2010, CIC asked Mr. Maghraoui
for an update on his case. In his response of January 21, 2011, the
applicant requested the disclosure of [translation]
“all information (from external or internal sources) related to potential
inadmissibility concerns”.
[6]
On
November 22, 2011, CIC called the applicant in for an interview. He was
advised that [translation] “the
information available indicates that there is a possibility that you are described
in paragraphs 34 and/or 40 of the IRPA”. The interview was held on
December 6, and the officer’s decision is dated April 17, 2012.
Impugned decision
[7]
The
officer concluded that the applicant was inadmissible under paragraphs 34(1)(f)
(security) and 40(1)(a) (misrepresentation) of the IRPA. She
acknowledged at the beginning of her analysis that the applicant’s statement
regarding the witness to his son’s birth had been improperly recorded in CSIS’
notes but nonetheless found that the entire document was not necessarily
invalid because of that.
[8]
First,
with respect to inadmissibility for misrepresentation, the officer identified a
number of misrepresentations by the applicant that could have induced an error in the administration of the IRPA. She
initially noted the applicant’s false narrative that was submitted to obtain
refugee status as well as the inconsistencies, omissions and minimization of
the ties he had had with a number of individuals connected to the Al-Qaida network.
[9]
The
officer found that the applicant had submitted a narrative that was not
credible in support of his refugee claim that was rejected in 1997. The
applicant was alleging at that time that he was associated with a religious
group named [translation] “Sufism
Group” to [translation] “stop the
practice of homosexuality”. The Tunisian authorities associated him at that
time with the Islamic group El-Nahda. It was not until 14 years later that the applicant
corrected his statements and conceded that he had never been a member of the [translation] “Sufism Group” and that he
had never been arrested and detained by the Tunisian authorities. The officer
found that [translation] “the fact
that the claimant lied undermines his credibility and also suggests to me that
he may be hiding important facts about his history in Tunisia”(Decision, para
20).
[10]
The
officer also noted that the applicant gave conflicting evidence about his ties
to a certain Hicham Gherras and one Ahmed Laabidi. The applicant had
stated that he did not know Laabidi. He corrected himself after the CSIS officer
confronted him with the fact that Laabidi had been a witness to his marriage.
As for Gherras, the officer noted that the applicant had been unable to
identify him in a photo in 2001 but that he was able to do so in 2002. The
evidence shows that in November 2000, Mr. Gherras’ spouse was arrested in
Germany and had in her possession the passport of the applicant’s wife. After
an exchange with the officer, the applicant blamed his wife’s son who had
perhaps sold the passport. The officer found that this was a [translation] “surprising coincidence”
and that the applicant’s ties with Mr. Gherras were more significant than
what the applicant had indicated.
[11]
The
officer’s decision is based, however, on the fact that the applicant did not disclose
the extent of his ties with two individuals connected to the Al-Qaida network, Raouf Hannachi
and Mohamedou Ould Slahi. At his first interview with CSIS in August 2001, the
applicant indicated that he sometimes saw Raouf Hannachi at the mosque,
the soccer stadium and the Tunisian café. At the second interview in January
2002, the applicant identified Raouf Hannachi in a photograph, stating
that he had never been invited to his home. However, when questioned by the
officer at the interview and confronted with CSIS’ notes, the applicant said
that he had never seen Raouf Hannachi. The officer concluded that the
applicant was seeking to minimize the closer ties he had with
Raouf Hannachi and thus made a misrepresentation within the meaning of
paragraph 40(1)(a) of the IRPA.
[12]
With
respect to Slahi, the applicant identified him in a photo at his interview with
CSIS in 2001 and said that he was a contact at the mosque. In 2002, he was
unable to identify him in a photo and denied knowing him at the interview with
the officer although Slahi had said that he knew the applicant. The officer found
that the conflicting testimony about the ties that the applicant had (or had
had) with Messrs. Hannachi and Slahi created doubt about the frankness and candour
of his narrative and that he was minimizing those ties out of fear that they
would adversely affect his application for permanent residence.
[13]
With
respect to paragraph 34(1)(f) of the IRPA, the officer noted
that anyone who provides logistical support or participates in any way in the
activities of a terrorist organization may be considered a member of the
organization. She then stated that it was clear from both the open and
classified evidence that the applicant had close ties with known members of the
Al-Qaida network, namely, Hannachi and Slahi. She added that these two
individuals were connected to Ahmed Ressam, who is currently imprisoned in
the United States for conspiring to bomb the Los Angeles airport at the
turn of the millennium.
[14]
Moreover,
the officer had doubts about the source of a balance of more than $30,000 in
the joint account of the applicant and his wife, considering their low declared
income and the fact that they were caring for three minor children. The
applicant stated that part of the money, i.e. $10,000, had been entrusted to
him by his wife’s daughter; she also had two children and worked only
occasionally in non‑specialized jobs. Accordingly, the officer did not
find the applicant’s explanations satisfactory.
[15]
Considering
all these factors, the officer made the following comments regarding national
security:
[translation]
[58] I considered the applicant’s statements as well
as all the available information, both open and classified. I noted and also
considered the following factors:
- the
applicant’s close ties with individuals who are members of the Al-Qaida network
or connected to it;
- the
applicant’s attitude at the interview, tending to minimize or deny these ties;
- the applicant’s
inconsistencies and omissions regarding the individuals he associated with;
- the applicant’s lack of
credibility.
[59] In the context of the security assessment, an
essential process to obtain permanent residence, the applicant chose to hide
important information about his relationships with persons connected to the Al-Qaida
network. This makes me think that the applicant knew he should not associate
with these individuals.
[60] Moreover, the applicant stated that he had
never taken part in any activity associated with Islamist extremism or an
Islamist organization. However, the applicant’s credibility, tainted by his
misrepresentations, combined with the classified information, causes me to reasonably
doubt the sincerity of the applicant’s statements in this regard.
[61] Thus, considering the foregoing, I assigned
significant weight to the classified information and to the fact that the
applicant misrepresented his ties with individuals connected to the Al-Qaida
network (see classified notes).
[62] Finally, I also considered the broad and non‑restrictive
interpretation given by Canadian courts to the notion of ‘member’ of an organization.
[63] In my opinion, all the preceding factors
combined give me reasonable grounds to believe that the applicant was a member
of the Al-Qaida network. Consequently, the applicant is described in
section 34(1)(f) of the IRPA and is inadmissible to Canada.
[64] Moreover, I am of the view that, given the
questions put to him at the interview, the applicant was reasonably informed
about CIC’s concerns and hence had the opportunity to respond.
[16]
With
respect to the application for exemption on humanitarian and compassionate
grounds, the officer initially noted that the applicant had not demonstrated
the existence of a personalized fear in Tunisia. She said she was sensitive to
the applicant’s situation, particularly the fact that he had been in Canada
since 1995, that his wife’s health was fragile and that he had three children
in Canada. The officer also considered the fact that the applicant supported his
family financially and morally and that it was not in the best interests of the
children that the applicant be returned to Tunisia. She nonetheless concluded
that the seriousness of the inadmissibilities prevailed over these
difficulties:
[translation]
[74] I reached the conclusion earlier that the applicant
is inadmissible to Canada under L34(1)(f), because there are reasonable
grounds to believe that he was a member of the Al-Qaida network. It is a global
organization with cells scattered over the entire world and with members and
collaborators ready to engage in violent terrorist actions in the name of an
extremist Islamic ideology. Furthermore, Al-Qaida has been implicated in
numerous terrorist attacks, including the one in the United States in September
2001. After a thorough review of the humanitarian and compassionate grounds
invoked, I found that if the applicant had to leave Canada, he and all the
members of his family in Canada would experience significant difficulties.
However, I am of the opinion that the seriousness of the inadmissibility
overrides these difficulties in this case.
[75] In addition, by misrepresenting his ties to persons
of interest connected to the Al-Qaida network, the applicant tried to circumvent
the obligation to provide all information relevant to his background check,
which is part of the requirements that all applicants for permanent residence
must comply with. In my opinion, the applicant thereby attempted to interfere
with the security checks. Accordingly, the inadmissibility under L40(1)(a)
that the applicant faces is linked to national security considerations. In my
opinion, the difficulties noted earlier are not as serious as the
inadmissibility, and lifting it is not warranted in the circumstances of this
case.
Issues
[17]
The
applicant did not really challenge the reasonableness of the officer’s decision
on the merits. Both in her written representations and at the hearing, his
counsel invoked a number of breaches of procedural fairness that taint the
officer’s findings. She particularly argued that the procedure followed in this
case violated the rights protected by section 7 of the Canadian Charter of
Rights and Freedoms in a number of respects. I will therefore rule in the
paragraphs on the following arguments put forward by counsel for the applicant:
(a) Did the officer breach
her duty to disclose, procedural fairness and the applicant’s rights protected under
section 7 of the Charter by not providing him with the information
and documents regarding her concerns about the applicant’s admissibility under
sections 34 and 40 of the IRPA?
(b) Should the officer have
disregarded the CSIS reports because they are unreliable?
(c) Should the officer have
excluded the CSIS reports inasmuch as the interview notes had been destroyed?
Analysis
[18]
It
is now settled law that the applicable standard of review where the question is
whether the principles of natural justice and procedural fairness were
respected is correctness: Sketchley v Canada (Attorney General), 2005 FCA
404, [2006] 2 FCR 392; Canadian Union of Public Employees (CUPE) v Ontario
(Minister of Labour), 2003 SCC 29 at para 100, [2003] 1 S.C.R. 539. Consequently,
this Court will not show any deference if it finds that the officer did not meet
her obligations with respect to the applicant.
a.
Did
the officer breach her obligation to disclose, procedural fairness and the
applicant’s rights protected under section 7 of the Charter by not
providing him with the information and documents regarding her concerns about
the applicant’s admissibility under sections 34 and 40 of the IRPA?
[19]
The
applicant alleges that the officer breached procedural fairness and the rights
guaranteed to him under section 7 of the Charter by not disclosing,
prior to the interview, all the evidence that was before her. He adds that the
information that he was confronted with at the interview, as well as the
redacted copies of the report issued by CSIS on December 29, 2003, and CSIS’
interview notes obtained as a result of an access request, were not sufficient
to enable him to respond to the officer’s concerns. According to the applicant,
the disclosure of these reports was necessary to [translation] “equalize the chances”. Finally, he submits
that even the public documents, to which the officer assigned considerable
weight, should have been provided to him.
[20]
I
cannot accept this argument for the reasons that I set out in Jahazi v
Canada (Citizenship and Immigration), 2010 FC 242 at para 32, [2011] 3 FCR 85
and Stables v Canada (Minister of Citizenship and Immigration), 2011 FC
1319 at para 40‑42, 400 FTR 135. In order for the right under section 7 of
the Charter to be dealt with in accordance with the principles of
natural justice, a person must first establish that he or she has been deprived
or could be deprived of life, liberty or security of the person. In Charkaoui
v Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, the
Supreme Court of Canada stated that section 7 of the Charter applied
because the persons named in a security certificate were detained and could be
returned to a country where there was a risk of torture:
[17] Medovarski thus does not stand for the
proposition that proceedings related to deportation in the immigration context
are immune from s. 7 scrutiny. While the deportation of a non-citizen in
the immigration context may not in itself engage s. 7 of the Charter,
some features associated with deportation, such as detention in the course of
the certificate process or the prospect of deportation to torture, may do so.
[21]
In
this case, the applicant is not detained, and the IRPA does not require
his detention. He is not facing a removal from Canada and will be able, if
necessary, to file an application for a pre‑removal risk assessment under
section 115 of the IRPA. In addition, there is no evidence of a
personalized risk to his life or security of his person if he were returned to
Tunisia. At the risk of repeating myself, I believe it would be useful to reiterate
the following passage from my reasons in Stables:
[40] It has been held, time and again, that a
finding of inadmissibility does not, in and of itself, engage an individual’s
section 7 interests (see, for example, Poshteh v Canada (MCI), 2005 FCA
85 at para 63, [2005] 3 FCR 487 [Poshteh]; Barrera v Canada (MEI),
[1993] 2 FC 3 at pp 15-16, 99 DLR (4th) 264. Even if it is
true that the Applicant, not being a refugee, could be deported while he awaits
the processing of his ministerial relief application, it would still not be
sufficient to trigger the application of section 7 rights (Medovarski v
Canada (MCI), 2005 SCC 51 at para 46, [2005] 2 S.C.R. 539; Canada (MEI) v
Chiarelli, [1992] 1 S.C.R. 711, at paras 12, 13; Hoang v Canada (MEI)
24 ACWS (3d) 1140 (FCA), 120 NR 193 (FCA)).
[41] Such a finding is consistent with the basic
constitutional foundation of Canadian immigration law, to wit, that only
Canadian citizens have the absolute right to enter and remain in Canada.
Non-citizens do not have an unqualified right to enter or remain in Canada, and
their ability to do so is strictly dependant on their satisfaction of the
admissibility criteria decided by Parliament.
[42] It is true that in Suresh, above, the
Supreme Court determined that the removal of a Convention refugee from Canada
to a country where a person would face a risk of torture engages the rights
protected under s. 7 of the Charter and cannot proceed unless it is consistent
with the principles of fundamental justice. It was the risk of torture on
removal, though, and not the fact of removal itself, that engage the
applicant’s section 7 interests in that case. . . .
[22]
That
being said, the principles of procedural fairness require that an applicant be
provided with the information on which a decision is based so that the
applicant can present his or her version of the facts and correct any errors or
misunderstandings. This duty of fairness can be met without always having to furnish
all the documents and reports the decision‑maker relied on. This will be
the case, in particular, where a document is protected by privilege based on
national security or on the solicitor‑client relationship. Ultimately,
the concern will always be to ensure that the applicant has the opportunity to
fully participate in the decision‑making process by being informed of
information that is not favourable to the applicant and having the opportunity
to present his or her point of view: see, in particular, Dasent v Canada (Minister
of Citizenship and Immigration) (TD), [1995] 1 FC 720 at para 23; Mekonen
v Canada (Minister of Citizenship and Immigration), 2007 FC 1133, at para
12 and ff.; Nadarasa v Canada (MCI), 2009 FC 1112 at para 25, [2009] FCJ
No 1350 (QL). The greater the impact of the impugned decision, the stricter
this requirement will be: Baker v Canada (Minister of Citizenship and Immigration),
[1999] 2 S.C.R. 817, at para 31‑33. In this case, the decision to reject the
applicant’s application for permanent residence because there were reasonable
grounds to believe that he was inadmissible for misrepresentation and for being
a member of a terrorist organization could have significant repercussions if he
were deported to his country of origin.
[23]
After
reading the entire record as well as the information that was excluded on the
ground of national security, I have concluded that the officer did not breach
her duty to respect the principles of procedural fairness. The officer called the
applicant in for an interview and indicated that she had concerns about the
inadmissibilities for misrepresentation (IRPA, s 40) and security (IRPA,
s 34). The call‑in letter stated the purpose of the interview as
follows:
[translation]
The purpose of the interview is for us to share our
concerns with you and to give you the opportunity to respond. Among other things,
we will discuss your activities and your contacts in Canada, past and present.
We will examine your immigration history in general and, in particular, the
inconsistent statements you made in your application for permanent residence.
[24]
The
applicant cannot therefore argue that he was taken by surprise. In any event,
the two interviews with CSIS could not have left any doubt in his mind as to
the concerns the Canadian authorities had about him because of his ties with
specific individuals who were possibly part of the Islamist movement.
Furthermore, through an access to information request, the applicant had
obtained a copy of the interview notes with CSIS dated August 30, 2001,
and January 31, 2002. The applicant received the notes on
November 26, 2008, three years before his hearing. Although the notes
arrived redacted, he was still able to recall the topics covered at those
interviews and had to have known what was said because he was obviously present
at those interviews. Moreover, it was because of these notes that he understood
the relevance of introducing into evidence the birth registration of his son, Mouaadh,
in order to establish that it had been signed by a nurse and not by Hicham Gherras
as was suggested in the interview notes of December 2003 recorded by CSIS.
[25]
Moreover,
it is clear from the interview notes that the officer confronted the applicant on
the essential points of the inconsistent statements and omissions that she was
accusing him of. She went back to the answers he had given at the two
interviews with CSIS agents and referred to the key information in those
reports. She allowed him to make all the corrections and clarifications he
wished and to present his version of the facts, particularly regarding his ties
with Raouf Hannachi, Mohamedou Ould Slahi, Ahmed Laabidi and Hichem Guerras.
By way of example, I will quote the following paragraphs from the interview
notes:
[translation]
82. At your interview with CSIS on AUG222001, you
were asked if you knew the Tunisian Ahmed Laabidi and you said that you
did not know that name. Why didn’t you say right away that you knew him?
83. At CSIS in August 2001, why didn’t you say that
Djelloul Bouhali had been your witness?
…
96. During the interview on August 22, 2001,
with CSIS, when you were shown a photo of Hicham, you stated that you had seen
him at the mosque but could not identify him. As you described to me, Chayma was
born on July 16, 2001, you had this interview about five weeks after he
was born, it was very close. How do you explain that you could not recognize
where you saw him?
97. Then, at the interview on January 16, 2002,
you said you had seen Hicham at the hospital in September 1998 because his wife
shared a room with your wife for her delivery. Why are you telling me today
that it was when Chayma was born but at the time you said
it was when Mouaadh was born?
…
101. According to the information I have, you told CSIS
that yes, in fact, Hicham signed for Mouaadh’s birth?
102. According to the information I have, you were
shown his photo?
…
105. The information in the file also indicates that
H. Gherras’ wife was arrested in Germany in November 2000 with the ppt of
your wife. Explanation?
…
110. With regard to this person [Mohamedou Ould
Slahi], during the interview with CSIS on August 22, 2001, you were shown
his photo, you recognized him, you said he was a contact at the Assuna mosque
by the name of ‘Abdullah’?
111. If I gave you his name? … It’s the name you
gave to CSIS, I’ll give you his real name.
112. Still on the subject of Mr. Ould Slahi,
if I told you that I have information that Mr. Ould Slahi was also
seen by CSIS, and he said that he knew you quite well, what would you say?
…
121. You say that you never met Raouf Hannachi in
person?
122. And yet, at CSIS, you said that you had seen
him? … Do you remember that you were questioned about Raouf?
123. However, at CSIS you were questioned about him
several times, and you stated that you saw him in public places but that you
had never seen him in any private home?
[26]
These
numerous questions attest to the fact that the applicant’s attention was
specifically drawn to the inconsistencies that were noted based on the
different responses he gave to the same questions and that he had ample
opportunity to explain. The applicant, moreover, did not try to demonstrate how
his participation in the process would have been different had he received the CSIS
reports (in their entirety or redacted) in advance and did not give any example
of what he might have said if he had read those reports prior to the interview.
On the contrary, he provided the officer with the same explanations (particularly
regarding his wife’s passport) that he had provided earlier regarding the
discrepancies between his different answers.
[27]
Taking
all the foregoing into account, I have reached the conclusion that the process
followed by the officer was fair and did not deprive the applicant of the
opportunity to shed light on his activities and his relationships with the four
individuals suspected of being involved in the Al-Qaida network’s Islamist movement.
The officer was not required to give the CSIS reports to the applicant. The
Supreme Court of Canada has recognized on a number of occasions that national
security considerations may limit the scope of the disclosure of information to
an individual: Ruby v Canada (Solicitor General), 2002 SCC 75, [2002] 4 SCR
3; Suresh, above; Charkaoui, above. Moreover, there is no similar
mechanism to the one provided in sections 86 and 87 before the IRB and the
Federal Court enabling the Minister to bring a motion for non‑disclosure
in an administrative proceeding. It is not at all certain that an officer of
the Minister can, without statutory authorization, redact on his or her own
initiative and without any framework, information whose disclosure could, in
the officer’s opinion, be injurious to national security or the safety of any
person. For the purposes of complying with procedural fairness, what is
important is that the information contained in the documents on which the
decision‑maker bases his or her decision be communicated to the applicant,
as opposed to the documents themselves. In this case, this duty was discharged.
[28]
However,
what about documents from public information sources? The basic rule in this
regard was set out by the Federal Court of Appeal in Mancia v Canada (Minister
of Citizenship and Immigration) (CA), [1998] 3 FC 461, and it is that there
is no requirement to disclose published documentary sources of information before
the decision is made:
[11] …
In circumstances where the
applicant is aware of a general process of relying on published documentary
sources of information on country conditions, as the applicant here must be
deemed to have been, and where he supplied some information of that sort with
his application, I cannot conclude that the information referred to by the PCDO
was beyond the ambit of publicly available information that a reasonable
applicant, advised by counsel, as the applicant was, would anticipate that the
PCDO would consider in reaching his decision.
It was information available to
the public, as in Nadarajah and Quintanilla. In my opinion, there
was no obligation on the PCDO to indicate the specific documents he was
considering in advance of his decision. There was no breach of a duty of
fairness in referring to documents available from public sources without
identifying the specific documents before the PCDO's decision was made.
See also: Holder v Canada (Minister of Employment
and Immigration), 2012 FC 337 at para 28, [2012] FCJ No 353; Stephenson v
Canada (Minister of Citizenship and Immigration), 2011 FC 932 at para 35 ff.,
[2011] FCJ No 932
[29]
In
her decision, the officer actually referred to a number of reports, books,
newspaper articles and magazines dealing with Ahmed Ressam, Mohamedou Ould
Slahi and the Al-Qaida network. These documents are all public, were not
prepared in relation to the applicant’s case and do not involve the applicant specifically.
On the contrary, they concern persons about whom the applicant was questioned
at the interviews with CSIS and only confirm the ties between these persons and
the Islamist movement. The applicant, furthermore, did not attempt to show in
what way these documents, which served as a backdrop, had taken him by surprise
or how disclosing them could have enabled him to prepare himself better.
[30]
The
onus was on the applicant to explain the ties he had with the four persons
suspected of belonging to the Al-Qaida network, which he was unable to do. His
inconsistencies, omissions and attempts to minimize his knowledge about these
persons have nothing to do with the public documents the officer quoted, and
she had no duty to disclose them to the applicant before making her decision.
(b) Should the
officer have disregarded the CSIS reports because they are unreliable?
[31]
The
applicant submitted a request to the officer to exclude CSIS’ notes and reports
and again argued before this Court that the officer should not have considered
these notes and reports given their unreliability. Specifically, the applicant
alleges the length of time between when the interviews took place (August 2001
and January 2002), when the report was issued (December 29, 2003) and when
it was sent to the CBSA, the existence of an error in CSIS’ notes regarding a
statement erroneously attributed to the applicant, a report by the Security
Intelligence Review Committee (SIRC) for the year 1999‑2000 establishing
that there were errors in CSIS’ interview notes on three occasions, and the
unconstitutionality of CSIS’ policy to destroy evidence. I will return to this
last point when I address the last issue.
[32]
It
is appropriate at the outset to mention that the officer considered these
representations in her decision and explicitly agreed that CSIS’ notes
contained an error in that they indicated that Hicham Guerras signed for
reporting the birth of the applicant’s son while instead it was the applicant who
signed the birth registration of Mr. Gherras’ son. However, this error was
not significant in the context of the officer’s decision on the applicant’s
ties to Mr. Guerras.
[33]
The
officer also considered the excerpt from the SRIC’s report that the applicant
relied on. Apart from the three complaints from the public that the applicant
referred to in his representations, the officer noted that the Committee examined
sixteen security intelligence investigations at immigration conducted by CSIS and
concluded that all the briefing notes in that sample were accurate and substantiated
by the information collected. On that basis, she could reasonably find that CSIS’
notes are generally reliable and thus dismiss the applicant’s request,
especially since a significant portion of the information in the CSIS report
had been compiled in a broader context than the verification of the applicant’s
history.
[34]
The
applicant attempted to argue that there could be other errors in the interview
notes and CSIS reports. But this is pure speculation. Other than the error
about his son’s birth certificate, it is clear from the officer’s interview
notes that the applicant never questioned the statements made to CSIS but
simply minimized or nuanced them. He had ample opportunity to establish that
they were inaccurate as he did for the birth registration, and he cannot now object
to their use because he disagrees with the conclusions the officer drew from
them.
(c) Should the
officer have excluded the CSIS reports insofar as the interview notes had been
destroyed?
[35]
As
mentioned above, the applicant is relying on the decisions of the Supreme Court
of Canada in Charkaoui v Canada (Citizenship and Immigration), 2008 SCC
38, [2008] 2 S.C.R. 326 (Charkaoui #2), and of the Federal Court of Appeal
in Harkat v Canada (Citizenship and Immigration), 2012 FCA 122, [2012] 3
FCR 635, that CSIS’ internal policy on the destruction of operational notes
breaches the principles of procedural fairness and is a serious breach of the
duty to retain information under section 12 of the Canadian Security
Intelligence Service Act, RSC 1985, c C-23. For the following reasons,
I do not believe that this argument can be accepted in the context of this
case.
[36]
In
Charkaoui #2, the Supreme Court of Canada found that, in the context of
security certificates, CSIS’ policy of destroying interview notes was contrary
to section 12 of the Canadian Security Intelligence Service Act and violated
the rights protected under section 7 of the Charter. According to
the Court, procedural fairness requires that the designated judge have access
to the officers’ notes and that he or she may provide them to the individual involved,
being careful to exclude any information that might pose a threat to national
security. The Supreme Court of Canada merely stated that the destruction of the
notes was not consistent with section 7 of the Charter and that it
was left to the designated judge to determine whether the destruction of the
notes had had a prejudicial impact.
[37]
The
issue of destroying CSIS’ notes in the context of security certificates was
examined again in the Harkat decision. On that occasion, the Federal
Court of Appeal affirmed that the policy of destroying original notes that was
in force at the time the facts in issue occurred (policy OPS-217) violated section 7
of the Charter. The Federal Court of Appeal noted that in that case the
destruction of the original notes was prejudicial to the appellant and that disclosing
the summaries to the special advocate did not constitute an adequate remedy
because neither the special advocate nor the designated judge could verify their
accuracy. The appropriate remedy, in the circumstances, was to exclude the summaries
from the admissible evidence.
[38]
In
this case, the applicant cannot invoke a violation of section 7 of the Charter
and ask that CSIS reports be excluded under subsection 24(1) of the IRPA
for the simple reason that this provision does not apply in this case. As
previously mentioned, the context in this case is not a security certificate
situation where a person may be detained and returned to a country where a risk
of torture is alleged.
[39]
Moreover,
the Federal Court of Appeal in Harkat was careful to carve out an
exception to the principle of excluding summaries where the original notes and
recordings have been destroyed. Where the summary deals with conversations to
which the applicant was privy, there is no need to intervene because the
applicant will be able to correct any errors it may contain. Here is what
Justice Létourneau wrote in this regard:
[143] I would except from the exclusion those
conversations to which the appellant was privy. He is in a position to
determine the accuracy and reliability of the summaries. While still
objectionable, the destruction of the originals is not as prejudicial to the
appellant as it is when the originals destroyed are originals of conversations
about him and to which he was not privy. He can, by his testimony and other
specific evidence, raise any error, inconsistency or inaccuracy contained in
these summaries which affect their accuracy and reliability: see Charkaoui
#2, at paragraph 67. I would simply issue as an appropriate and sufficient
remedy with respect to these conversations a declaration that his right to
disclosure under section 7 of the Charter has been violated: see Canada
(Prime Minister) v. Khadr, [2010] 1 S.C.R. 44
[40]
The
applicant did not cite any decision where CSIS’ destruction of original interview
notes was examined in the context of an application for permanent residence. The
only decision referred to was Golestaneh v Canada (Minister of Public Safety
and Emergency Preparedness), 2007 FC 509, [2007] FCJ No 691, where
Justice Blais found that a CBSA officer erred in law when he prepared an
inadmissibility report on the basis of a CSIS report without consulting the
documents in support of the report. It does not appear to me that this decision
is of any use to the applicant because it appears from the impugned decision
that the officer had access and consulted all the available documents.
Conclusion
[41]
For
all the foregoing reasons, I am of the opinion that this application for
judicial review must be dismissed. At the hearing, counsel for the applicant
stated a certified question regarding CSIS’ duty to retain interview notes,
which she subsequently withdrew because in her view the Supreme Court of Canada
had already answered it in Charkaoui #2. Although I disagree with the
applicant’s interpretation of Charkaoui #2, I do not believe it is
necessary to certify this question insofar as it seems to me to have been determined
by the Federal Court of Appeal in Harkat.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that the application for judicial
review is dismissed. No question of general importance is certified.
“Yves de Montigny”
Certified
true translation
Mary
Jo Egan, LLB
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